Question 1 Explain 8 electoral offences in Kenya in relation to the voting process and campaigning and suggest the solutions

/ recommendations to control these offences (where possible). (30 Marks) Election Offences Election Offences in Kenya In Relation to Registration of Voters

The following are some of the election offences that are punishable by law:1. Double/multiple registration: your name appearing more than once on the voters register The problems of multiple registrations are attributed partly to the failure of the registration machinery to cancel the former/original registrations of registrants who were transferred and those who made corrections to their particulars. In order to address this problem names that remained on the list, the IIEC developed the following procedures for polling officials to observe: a) voters who had registered twice (i.e. double registered voters) were to be allowed to vote if the following conditions were met: The voter was to surrender to the Presiding Officer both electors cards; The Presiding Officer or Deputy Presiding Officer was to emboss both cards as if s/he voted with both of them and retain the cards; The Presiding Officer or Deputy Presiding Officer was to interview the voter first, to convincingly establish that the voter had registered twice as a result of the Electoral Commissions failure or default to delete one of his/her registrations; The voter was to fill a form entitled Declaration by a doubly registered voter which the District Election Coordinator was to supply to the Returning Officer, who in turn was to supply it to the Presiding Officers and Deputy Presiding Officers; The Presiding Officer or Deputy Presiding Officer was to firstly, make a record showing the names and serial numbers of the voters cards and registration centers they originated from, and secondly, to retain the form Declaration by a doubly registered voter. b) Voters who register more than twice are prohibited from voting, and face possible legal sanctions if they attempt to vote. Anyone who commits such an offence shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to

imprisonment for a term not exceeding one year or to both such fine and imprisonment. A person who aids another to register as a voter more than once commits an offence and shall upon conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding one year or to both such fine and imprisonment 2. Having more than one voters card Unlawfully, being in possession of 2 or more ballot papers with official perforation, stamp or mark, or printing within the polling station or being found, outside the polling station, in possession, a ballot paper is a punishable offence by law 3. Selling or buying voters card: buying or selling voters card for cash or material gain Voters who accept money, food, refreshments and other inducements from a politician in order to vote or not to vote for a particular candidate will face punishment as will voters who sell or purport to sell their cards to candidates. Candidates or their agents who bribe or buy voters' cards will also face similar punishment. The punishment is a fine of sh 1 million or a jail term of 5 years or both. 4. Prevention, obstruction or barring of a person from voting. Unlawful action or conduct by election officers and maintenance of secrecy and unlawful communication at elections by officers, candidates or agents. Undue influence, that is, using or threatening to use force, violence or temporal or spiritual injury, damage or loss, fraudulent device, trick or deception to influence a voter or candidate or nomination of a candidate. The penalty for these offences is imprisonment for a period not exceeding five years. 5. Hate speech particularly on ethnic and gender lines targeting the opposing side; Making or publishing any false statement of fact about a candidates personal character or conduct or regarding the withdrawal of a candidate. Any form of speech that degrades others and promotes hatred and encourages violence against a group on the basis of religion, race, color or ethnicity. It includes speech, publication or broadcast that represents as inherently inferior, or degrades, dehumanizes and demeans a group on the basis of the criteria above.

6. Carrying out campaigns on polling day Facilitation of use or use of musical instruments or loud speaker for purposes of political propaganda during polling day.

7. Soliciting or receiving bribes to encourage voting for a candidate Bribery, that is, giving, procuring, offering, promising, receiving money, office, place or employment, gift, loan or some other valuable consideration in order to influence a voter, an officer or a candidate is an offence and is punishable by law. 8. Impersonation: Impersonation, that is, applying for a ballot paper in another or a fictitious persons name, or in ones name in an election where one has already voted or carrying another person voters card. The penalty for offences of personating, undue influence or bribery (all of which are cognizable and the prosecution of which requires the Attorney Generals consent) is imprisonment for a period of not more than five years.

9. Unlawfully destroying, taking, opening or interfering with a ballot box or ballot papersA person who for the purposes of an election, manufactures, constructs, imports, has in their possession, supplies or uses, or causes to be manufactured, constructed, imported, supplied or used, any appliance, device or mechanism by which a ballot paper may be extracted, affected or manipulated after having been deposited in a ballot box during the polling at any election, commits

an offence and shall on conviction be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding six years or to both such fine and imprisonment.

10. Offences by election officers: Any officer, clerk, interpreter or other person having any duty to perform pursuant to any written law relating to any election who Makes, in any record, return or other document which he is required to keep or make under such written law, any entry which he knows or has reasonable cause to believe to be false, or does not believe to be true; or

Permits any person whom he knows or has reasonable cause to believe not to be a blind person or an incapacitated person to vote in the manner provided for blind persons or incapacitated persons, as the case may be; or

Refuses to permit any person whom he knows or has reasonable cause to believe to be a blind person or an incapacitated person to vote in the manner provided for blind persons or incapacitated persons, as the case may be; or

Willfully prevents any person from voting at the polling station at which he knows or has reasonable cause to believe such person is entitled to vote; or Willfully rejects or refuses to count any ballot paper which he knows or has reasonable cause to believe is validly cast for any candidate in accordance with the provisions of such written law; or

Willfully counts any ballot paper as being cast for any candidate, which he knows or has reasonable cause to believe was not validly cast for such candidate; or Is without reasonable cause guilty of any act or omission in breach of his official duty, shall be guilty of an offence and liable to imprisonment for a term not exceeding five years.

11. Interferences with free political canvassing and campaigning by Directly or indirectly, using the threat of force, violence, harassment or otherwise preventing the conduct of any political meeting, march, demonstration or other event of a political nature or any other person from attending or participating therein; Creating a material disruption with the intention of preventing a political party from holding a public political meeting; Impeding or preventing or threatening to impede or prevent the right of any representative of any political party from gaining access, in the manner and during the hours prescribed to voters in any particular area, whether public or private for the purposes of canvassing and campaigning and soliciting membership and support; or Impeding or preventing threatening to impede or prevent a member of the Commission, a representative of the Commission or any other authorized person or organization engaged in voter education from gaining access, in the manner and during the hours prescribed, to voters in any particular area, whether public or private, for the purposes of

conducting voter education. A person found to have committed such offences is liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding six years or to both such fine and imprisonment, and in any other case, to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding five years or to both such fine and imprisonment.

12. Unapologetic use of public resources for campaigns The use of government resources for partisan political engagements is a blatant misuse of taxpayers money. While it is very clear that electoral campaigns are not official government business, KNCHR found substantial evidence of misuse of public resources in partisan political campaigns of the last general elections. These mainly included the use of government vehicles and government aircrafts to conduct campaigns. Ministers and Assistant Ministers wishing to campaign should use party or personal resources and not abuse their positions of political power, privilege and influence to secure undue political advantage for their preferred candidate.

13. Involvement of Public Officers in election campaigns No public officer should engage in the activities of any political party or act as agent of any such party; or Publicly indicate support for or opposition against any party or candidate participating in an election. A public officer who contravenes any of the provisions of subsection (1) shall be guilty of an offence and liable to a fine not exceeding fifty thousand shillings or imprisonment for a term not exceeding six months, or to both. RECOMMENDATIONS . Voter Registration Implementation of a better system for updating the register of voters. Implementation of a better for the provision of voters identification cards.

The Media Place a limit on the amount of expenditure that can be incurred during the campaign. Require all advertisements to carry some form of identification. Provide clear guidelines with regard to disallowing advertising with inappropriate content.

Provide increased training for all media on political reporting. Ensure that the KBC complies with the broadcasting act by providing fair and balanced reporting as well as free airtime for political parties; The MCK should oversee the conduct of media and enforce its Code of Conduct Access to KBC by the Presidential Press Service be reviewed, particularly in an election year

Voting Process Address the potential for the violation of secrecy of ballots cast by illiterate voters, that those voters are taught through voter education to look for the party symbols and that candidates photographs be added to the ballots. Introduction of transparent ballot boxes. Clearly marked ballot boxes with distinguishing colors. Requirement for polling staff to issue all three ballot papers at once to a voter. Strengthen the capacity to manage polling stations. Ensure that all polling staff is aware that Deputy Presiding Officers are empowered to conduct the count. Ensure that there are better layout and clearer directions in polling centers for voters to access the correct polling stations. Ensure greater care with the authentication of ballot papers so that this procedure is carried out one ballot at a time and not authenticated in bulk beforehand. Ensure strict adherence to the procedure for the calling out of voters names as they are marked off the register.

Voter education Voter education addresses voters motivation and preparedness to participate fully in elections. It involves more complex information about voting and electoral process and is concerned with concepts such as the link between basic human rights and voting rights, the role, responsibilities and rights of voters, the relationship between elections and democracy and the conditions necessary for democratic elections, secrecy of the ballot, why each vote is important and its impact on public accountability, and how votes translate into seats. The messages to be conveyed

to the voters should consist the following themes:

Good governance; How to vote; Free and fair elections; Determining spoilt votes; and How to mark the ballots: this is especially designed for illiterate voters.

Civic education Involves educating citizens about their obligations and rights within a given political or ethical tradition. It is suggested that voter education is an amalgam of voter information and some civic education programmes, specifically those dealing with elections. Voter information refers to basic information enabling qualified citizens to vote, including the date, time, and place of voting, the type of election, identification necessary to establish eligibility, registration requirements and mechanisms for voting.

Hate Speech The IIEC and the police should take appropriate legal action against persons engaged in hate speech, incitement and acts of violence during electoral campaigns particularly high level public officers. There should be a clear separation between government functions and political party affairs so that government officials do not engage in partisan electoral campaigns in the name of conducting official government business. The police and the ECK need to be more proactive, vigilant and firm in dealing with the perpetrators of violence during elections. Special measures should be instituted to ensure security of women aspirants in view of their vulnerability. Citizens must exercise more tolerance and respect for each other during the tense election period. They should desist from being incited and misused by politicians in their quest for power. Politicians must also bear the responsibility of ensuring that there is no violence during electoral campaigns.

Kenyans should desist from being agents and conduits of hate speech by refusing to condone or forward offensive texts through SMS, email or otherwise.

Women Separate funding to be made available to female candidates, considering their low social and economic status. Enforce laws to protect candidates, particularly women, from violent attacks. Government and political parties to foster an environment that is conducive to womens active participation in politics.

Youth Provide adequate funding to ensure that young people are able to genuinely compete when nominating for election.

Campaign Financing Formulate regulations governing the financing of campaigns, in particular the identification of sources of funding political parties use for campaigns. Encourage all parties to negotiate an agreement regarding relevant regulations concerning the use of state resources at future elections.